Mahaveer Bhawsar vs The Chairman cum Managing Director, Rajasthan State Road Transport Corporation and Others

Alok Sharma, J—The case of the petitioner is that he was working on the post of Conductor with the respondent - RSRTC for about 12 years. Let he has been treated as a probationer and removed from service without any inquiry. It has been submitted that under Clause 8 of the Rajasthan State Road Transport Workers and Workshop Employees Standing Order, 1965 (hereinafter ''the Standing Order of 1965'') the period of probation in respect of drivers and conductors is two years extendable by a maximum of six months. And the petitioner''s confirmation was not subject to passing of any trade test or departmental examination. Consequently he was entitled to be confirmed at the end of 2-1/2 years of a probation but was not so arbitrarily. And no order of confirmation was passed. Yet in terms of Standing Orders of 1965 the petitioner cannot be treated as a probationer.

It has been prayed that the order of termination dated 7.1.2015, wrongly treating the petitioner as a probationer trainee without conducting any enquiry compliant with natural justice be declared null and void and it be directed that the petitioner is entitled to be confirmed on the post of Conductor and granted regular scale of pay looking to the fact that he has worked for about 12 years on fixed remuneration on the post of Conductor after regular appointment on compassionate grounds following the death of his father on 17.12.1998 when he was in service of the respondent RSRTC.

Reply to the petition has been filed. It has been submitted that the petitioner has a remedy of appeal under clause 35(vii) of the Standing Orders of 1965 where-under all the orders of punishment are appealable to the next higher authority within a period of 15 days from the date of passing of the order. It has however been admitted that on the death of the petitioner''s father while working as a Class-IV employee with the respondent Corporation, the petitioner was appointed on compassionate grounds on 13.5.2003 on a fixed salary of Rs. 2,500/- p.m. as a probationer trainee for a period of two years. It has however, not been denied that the maximum period of probation of a Conductor appointed in the service of RSRTC cannot be more than 2-1/2 years in the aggregate. Reference has however been made to the conduct of the petitioner while in service of the respondent - RSRTC stating that he was issued notices continuously on as many as 22 occasions upto the Month of March 2014 and in these circumstances he was not confirmed on the post of Conductor. It has been submitted that the petitioner was assigned duty on 30.12.2014 on the Ajmer-Masuda-Ajmer route on a bus run by the RSRTC and during a sudden inspection of vehicle, five passengers were found to be travelling without tickets from whom the petitioner had already received the fare. A clear case of cheating and misappropriation. A show cause notice dated 1.1.2015 was issued to the petitioner and the petitioner directed to submit his reply within three days. Yet the petitioner did not file any reply to the show cause notice within the prescribed time. Consequently, in terms of conditions No. 5 and 9 of the appointment order dated 13.5.2003 and taking into consideration the history of the previous misconduct/infractions of the petitioner, his services were discontinued vide order dated 7.1.2015 in the interest of the respondent Corporation. A regular departmental enquiry was not necessary against the petitioner, only a probationer trainee, submitted counsel for RSRTC. Consequently the order of termination can not be put to challenge before this Court.

Heard. Considered.

I find no force in the contention of the respondent - RSRTC that the writ petition should not be entertained on account of the petitioner having an alternative remedy in terms of Clause 35(vii) of the Standing Orders of 1965. It is trite that where the impugned order is vitiated by denial of principles of natural justice or is without jurisdiction, alternative remedy does not obstruct the power of this Court to exercise its equitable extra-ordinary jurisdiction under Article 226 of the Constitution of India. Such a situation obtains in the present case. The petitioner has been dismissed from service perfunctorily without due process after having served for about 12 years. The writ petition is therefore maintainable.

I am also disinclined to accept the contention of the respondent-RSRTC that the petitioner could be continued as a probationer trainee despite having served for about 12 years and was liable to be terminated without an inquiry. For one; the maximum period of probation under Clause 35(ii) of the Standing Orders of 1965 in respect of Conductors, as the petitioner was following his compassionate appointment, is for a period of 2-1/2 years in the aggregate. The letter of appointment of the petitioner does not require the petitioner to satisfy any further condition such as passing a departmental examination or a prescribed test prior to confirmation. In this view of the matter, the petitioner cannot be said to be a probationer even after lapse of 12 years since his appointment. And therefore, the contention of the counsel for the petitioner that he could be removed without due process is without force. Aside of the aforesaid it is well settled and also reiterated in the Judgment of Hon''ble Apex Court in the case of V.P. Ahuja Vs. State of Punjab and Others, AIR 2000 SC 1080 : (2000) 85 FLR 197 : (2000) 3 JT 1 : (2000) 1 LLJ 1099 : (2000) 125 PLR 696 : (2000) 2 SCALE 233 : (2000) 3 SCC 239 : (2000) 2 SCR 130 : (2000) 1 UJ 630 : (2000) AIRSCW 792 : (2000) 2 Supreme 259 that even in respect of a probationer, if the impugned order of removal is stigmatic, compliance with principles of natural justice would be necessary prior to passing of such an order.

The order of termination dated 7.1.2015 on the face of it, is founded upon a finding of the petitioner''s misconduct of ferrying five passengers without tickets while working as a Conductor on RSRTC''s bus. This could not have been done, one way or the other, without due process and an opportunity to the petitioner to defend himself.

Consequently, the upshot of the aforesaid discussion is that the order of termination dated 7.1.2015 is liable to be quashed and set aside and is accordingly set aside. It is directed that the petitioner shall continue in service as Conductor with RSRTC. However, the respondent - RSRTC shall be free to initiate a departmental enquiry against the petitioner for misconduct alleged and if warranted in the facts of the case invoke its power to suspend the petitioner during the period of departmental enquiry. However payment of subsistence allowance be made to the petitioner in event of his suspension as per the prevailing Rules and Regulations of the RSRTC. The Departmental Enquiry if initiated be completed within 12 months at the maximum.

As far as the prayer for confirmation is concerned, the petitioner is free to make a representation to the Chairman-cum-Managing Director, RSRTC, who shall on its receipt decide it by a reasoned order with reference to the Regulations of 1965 within four weeks. If aggrieved, the petitioner shall be free to take his remedies in law.

The writ petition is partly allowed.